5 Privacy Laws I Would Put on the Books Right Now

As we hear more and more about government spying at the federal, state, and local levels, it's time to start thinking about what to do if we want to protect our privacy. Instapundit blogger and PopMech contributor Glenn Harlan Reynolds outlines the new rules he'd like to see.

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1. Treat Email More Like Mail

By statute, law enforcement can't open domestic communications through U.S. mail without a court order. But under the federal law covering email—the Electronic Communications Privacy Act, which dates back to 1986—they can obtain many of your emails without a warrant, merely by subpoenaing the email provider. Texas has passed, and Gov. Rick Perry has signed, a state law requiring a warrant for access to email content. This is a good start, but I'd like to see something similar at the federal level.

2. Protect Metadata

The National Security Agency (NSA) and other government agencies record cellphone and email metadata—who you call, when you call, how long you call, your location when making the call—on the same basis. Likewise, many local police departments are tracking license plates around town and building databases of who goes where. Even the U.S. Postal Service records its metadata without a warrant. Because so-called cover information such as the addressee's address, return address, and postmark is recorded on every piece of mail and postal employees can see it, the information is considered public.

Yes, all of this is "public" information, in a sense. Anyone can see your license plate when you drive by, or take note when you're parked on the street. But when all that information is collected, it produces a surprisingly detailed picture of your life, one that's not available to the average passerby.

A recent Stanford experiment illustrated that phone metadata gives away a lot of information. Jonathan Mayer, the graduate student leading the study, remarked: "We found that phone metadata is unambiguously sensitive, even in a small population and over a short time window. We were able to infer medical conditions, firearm ownership, and more, using solely phone metadata."

We've seen some hints that courts may be more willing to police this sort of thing, but there's no reason to wait: We could just as easily set limits on the collection and use of metadata by statute.

3. Curtail Those Click-Through Agreements

Government spying isn't the only kind of digital spying. Businesses gather a lot of information from users, which they then sell or share with the government without the users' input. Sure, you probably gave them blanket permission by agreeing to one of those license agreements that no one reads, but it's doubtful that that permission was knowing. And it's not like you had much of a choice, since companies don't really compete on the basis of privacy. (Why should they, when no one but a lawyer can understand those click-through agreements?) A serious privacy statute would put limits on what could be done via click-throughs, requiring specific approval for more intrusive uses of data, perhaps on a case-by-case basis.

4. Emphasize Reciprocity

Private citizens should be entitled to do anything that government entities can do without a warrant. For example, when I'm out in public anyone can see my license plates. But I'll bet that police or prosecutors or judges would object if I started tracking their "public" movements everywhere they went. If they can fly a drone over my backyard without a warrant, then I should be able to do the same to them. Government officials should have no more protection from that sort of thing than the rest of us. This will encourage both more transparency and a more serious attention to privacy.

5. Abolish Immunity for Abuse of Surveillance Power

Because of guidelines that courts created in an overlooked episode of judicial activism, law enforcement officers have qualified good-faith immunity when they violate the law, meaning they can be sued only if they knowingly violate a clearly established right. Prosecutors and judges have absolute immunity, meaning they can't be sued even if they knowingly acted wrongly.

If you really want to protect people's privacy, make illegal privacy invasions subject to damages—and then let the plaintiffs' attorneys provide the enforcement mechanism.